Full opinion text
CHARLES CLARK, Circuit Judge: In today’s decision the court en banc reverses a panel opinion which implied a cause of action for money damages from the Due Process Clause of the fifth amendment of the Constitution. In her complaint, Ms. Shirley Davis alleged that former Louisiana Congressman Otto Passman dismissed her as his Deputy Administrative Assistant solely because she was a woman and he wanted a man in the position. Davis claimed Passman’s actions violated the equal protection component of the fifth amendment Due Process Clause. Invoking the court’s jurisdiction under 28 U.S.C.A. § 1381(a), she sought specific relief, damages, and declaratory relief. Because Passman’s service in Congress ended after the suit was brought, the claim has -narrowed to one for recovery of money damages. The district court based its dismissal of the complaint on alternative grounds: (1) that the law affords Davis no private right of action and (2) that the conduct of which she complained did not violate the Constitution. Addressing only the surviving claim for money damages, we affirm the district court’s dismissal on the first ground. The roster of constitutional rights which have been held to support implied damage actions began its growth with the Supreme Court’s seminal decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Court noted that historically damages have been regarded as the “ordinary remedy for an invasion of personal interests in liberty,” and implied a cause of action for money damages for the invasion of the plaintiff’s liberty which abridged his fourth amendment rights. 403 U.S. at 395, 91 S.Ct. at 2004, 29 L.Ed.2d at 626. Although the Supreme Court has neither extended nor further explained its initial position, many inferior federal courts have cited Bivens as authorizing implied actions for money damages based on constitutional rights other than the fourth amendment. Generally, these decisions have recognized implicitly that Bivens has some yet unreached limits. Only isolated district court decisions have asserted that Bivens created damage actions for violation of constitutional rights as broadly as if it had decreed that 42 U.S.C.A. § 1983 applied to the federal government. This appeal requires either that we join other circuits, in projecting the scope of Bivens to the Due Process Clauses of the fourteenth and fifth amendments, or decline to follow their precedents. A choice is not foreclosed. In more than one decision the Supreme Court specifically has pointed out that this issue remains open. Our own decisions appear equivocal on this point. We have ruled district courts erred in finding no jurisdiction to consider damage claims based upon implied causes of action under the Due Process Clauses of both the fifth amendment, Weir v. Muller, 527 F.2d 872 (5th Cir. 1976), and the fourteenth amendment, Reeves v. City of Jackson, 532 F.2d 491, 495 (5th Cir. 1976). See also Roane v. Callisburg Independent School District, 511 F.2d 633, 635 n.1 (5th Cir. 1975); United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799, 801-02 & n.2 (5th Cir. 1974); Traylor v. City of Amarillo, 492 F.2d 1156, 1157 n.2 (5th Cir. 1974). However, in Rodriguez v. Ritchey, 556 F.2d 1185, 1192 (5th Cir. 1977) (en banc), we expressly declined to speak as an en banc court on the appropriateness of extending Bivens beyond the fourth amendment. Now we find ourselves face-to-face with the necessity to take a firm position. To decide whether to imply a cause of action for money damages from the fifth amendment Due Process Clause, we must examine Bivens itself. While Bivens is not without ambiguity, the analysis employed by the Court shows that the cause of action created is not wholly of constitutional dimensions. The opinion of the Court expressly states: we cannot accept respondents’ formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress. 403 U.S. at 397, 91 S.Ct. at 2005, 29 L.Ed.2d at 627. The cases relied upon for guidance by the Court in Bivens dealt with implying a cause of action from federal statutes that created rights but provided no federal remedy. Moreover, in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court’s most comprehensive treatment of implied statutory causes of action, the Court relied upon Bivens to support two points of its four-part statutory analysis. If the fourth amendment had mandated a cause of action for monetary damages, Bivens would have had no occasion to consult or discuss the action or inaction of Congress. Since the Court explicitly reasoned its precedent on the latter ground, we take the Bivens remedy to be one implied as a matter of federal common law and therefore subject, like all such law, to the power of Congress to alter or withdraw. Therefore, we employ a two-step analysis. First, we look to the jurisprudence of statutory implication to determine whether to imply a damage action of non-constitutional dimensions. Second, if this initial inquiry does not suggest that such an action should be implied, we must determine whether the Constitution nevertheless compels the existence of a remedy in damages to vindicate the rights asserted. See Kostka v. Hogg, 560 F.2d 37, 42 (1st Cir. 1977). Applying this analysis to Davis’ claim, we find that the district court properly concluded that no cause of action existed. Courts have considered several factors in determining whether to imply a cause of action from a statutory right: (1) whether the provision asserted creates an especial right in the plaintiff, (2) whether the action of Congress in the field indicates an intent to allow such a remedy or at least an intent not to deny the remedy, (3) whether implication of the remedy would be consistent with the purpose of the right asserted, and (4) whether the cause of action implied would be one appropriate for federal law. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36. Of course, the factors examined in questions of implied statutory causes of action, as set forth in Cort and preceding cases, cannot be applied in precisely the same way where implying a Bivens -type action is at issue. However, this circuit has held that the Cort factors do not set forth a rigid pattern of analysis that a court must follow precisely. Rather, “the Court simply said that several factors were relevant and worthy of consideration.” Olsen v. Shell Oil Co., 561 F.2d 1178, 1188 (5th Cir. 1977). Where federal courts have inferred a federal private cause of action not expressly provided, there generally has been a clearly articulated federal right in the plaintiff. Cort v. Ash, 422 U.S. 66, 82, 95 S.Ct. 2080, 2090, 45 L.Ed.2d 26, 38 (1975), citing Bivens v. Six Unknown Named Agents, 403 U.S. 388, 394-95, 91 S.Ct. 1999, 2003-04, 29 L.Ed.2d 619, 625-26 (1971). While the fifth amendment right to due process certainly confers a right upon Davis, the injury alleged here does not infringe this right as directly as the injury inflicted in the unreasonable search of Webster Bivens offended the fourth amendment. The concept of due process encompasses virtually all of the civil liberties derived from the Constitution. While the fifth amendment Due Process Clause surely exists for the “especial benefit” of Davis, as Cort required, it does not exist with equal certainty to protect her tenure in a non-competitive personal aide position statutorily denominated as service at will. 2 U.S.C.A. § 92. Cort looked to “legislative intent, explicit or implicit, either to create such a remedy or to deny one.” 422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36. Bivens recognized that congressional intent to create a remedy must guide a court in determining whether to imply a remedy from provisions of the Constitution. 403 U.S. at 396-97, 91 S.Ct. at 2004-05, 29 L.Ed.2d at 626-27. Congressional remedial legislation for employment discrimination has carefully avoided creating a cause of action for money damages for one in Davis’ position. In Section 701, Title VII of the Civil Rights Act of 1964, Congress excluded the federal government from the general definition of “employer,” thus denying federal employees a statutory damage action under Title VII. 42 U.S. C.A. § 2000e(b). In 1972, Congress amended Title VII to add Section 717, which provided a separate administrative remedy for discrimination in federal employment, but did not extend the remedy to employees of Congress not in the competitive service. Under Section 717, other federal employees may have review in the federal courts of final action by their employing agencies or the Civil Service Board of Review, 42 U.S. C.A. § 2000e-16(a) (1974). Congressional action in designing Title VII remedies shows Congress adhered to the legislative judgment expressed in the statute under which Davis was hired: Members of a congressman’s personal staff are removable by him “at any time . . . with or without cause.” 2 U.S.C.A. § 92. Implying the cause of action asserted by Davis would have the anomalous result of granting federal employees in non-competitive positions, whom Congress did not intend to protect, a remedy far more extensive than Congress adopted for federal employees in the competitive service, whom it did intend to protect. When Congress enacted Section 717, it believed that no other effective remedy existed for federal employees treated discriminatorily. See Brown v. General Services Admin., 425 U.S. 820, 826-28, 96 S.Ct. 1961, 1965-66, 48 L.Ed.2d 402, 407-08 (1976); H.R.Rep.No.92-238, 92d Cong. 2d Sess., [1972] U.S.Code Cong. & Admin.News, 2137, 2160. However, in amending Title VII to make it the “exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination” for those federal employees it covered, Congress did not grant federal employees in the competitive service an action for damages against their superiors in their individual capacities. The Supreme Court has upheld the exclusivity of Title VII as a remedy for federal employment discrimination against employees in the competitive service whom it covers. In Brown, the Court held that Congress could require federal employees alleging discrimination to seek relief solely within the confines of Title VII, a limitation which plaintiffs could not surmount by the simple expedient of putting a different label on the pleadings. 425 U.S. at 832, 96 S.Ct. at 1968, 48 L.Ed.2d at 411. Congress cannot have intended to deal more generously with those in Davis’ position, from whom it deliberately withheld protection. Cort calls for an examination of the consistency of a statutory cause of action with the statutory scheme enacted by Congress. 422 U.S. at 78, 84, 95 S.Ct. at 2088, 2090-91, 45 L.Ed.2d at 39. The Court in Bivens made an analogous inquiry in considering the particular difficulties presented in enforcing the guarantees of the fourth amendment. The fourth amendment has presented the Court with a series of remedial dilemmas, not encountered in other contexts, with which the Court has wrestled actively for over half a century. The amendment’s subject matter is such that law enforcement officials, who necessarily make the searches and seizures it governs, are themselves the group most likely to be hostile to its barriers. This hostility of law enforcement officials to the restraint of the fourth amendment led the Court initially to adopt the exclusionary rule for federal cases, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and then to apply it to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), when criminal actions and state law tort actions proffered as a substitute remedy in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), showed themselves ineffective. However, the exclusionary rule — the remedy chosen to secure the right — also has proved less than satisfactory. See Bivens v. Six Unknown Named Agents, 403 U.S. at 411, 91 S.Ct. at 2012, 29 L.Ed.2d 635 (1971) (Burger, C. J., dissenting). Thus the Court continues to struggle for a just means for enforcing the fourth amendment. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Violations of fourth amendment rights occur in a well-defined setting familiar to the courts. The relationship is always one between law enforcement officials and citizens suspected of possessing evidence of crime. The context in which these violations may arise is sufficiently limited to allow the court to determine that an action for damages would be consistent with the purpose of the fourth amendment in future instances in which such an action might be invoked. The fifth amendment Due Process Clause presents no similarly focused remedial issue. To the contrary, the breadth of the concept of due process indicates that the damage remedy sought will not be judicially manageable and that there is simply no way a court can judge whether this remedy will be appropriate for securing the right in future situations where some plaintiff might assert it. The final factor considered in Cort is whether “the cause of action is one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.” 422 U.S. at 78, 84-85, 95 S.Ct. at 2088, 2091, 45 L.Ed.2d at 36, citing Bivens v. Six Unknown Named Agents, 403 U.S. at 394-95, 91 S.Ct. at 2003-04, 29 L.Ed.2d at 625-26. Under this factor we consider the effect that implying a remedy would have upon both state law and the federal judiciary. Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 477, 97 S.Ct. 1292, 1303, 51 L.Ed.2d 480, 494 (1977); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 739-741, 95 S.Ct. 1917, 1927-28, 44 L.Ed.2d 539, 551-52 (1975). While the particular circumstances of the case at bar raise questions of federal rights in federal employment, adoption of the broad principle upon which the granting of relief to Davis hinges would expand federal jurisdiction into broad fields of law presently occupied by state court systems. Therefore, we properly consider this factor. Adoption of Davis’ interpretation of Bivens would project the penumbra of federal court constitutional due process jurisdiction over every legally cognizable tortious injury inflicted by persons acting under color of federal law because, by its nature, every tort deprives the victim of due process through unlawful appropriation of liberty or property or both. Indeed, logically, the expansive effect of such a holding would not end there. It also would extend federal jurisdiction to cover all state action tort claims, either under pendent jurisdiction, cf. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), or under a cause of action implied from the fourteenth amendment. The latter of these state action claims would be cognizable without regard to diversity of citizenship, amount in controversy or other present statutory limitation. Because of the breadth of due process, a decision implying an action for money damages from the fifth amendment Due Process Clause alone would extend an action for damages to any constitutional guarantee. Thus, the danger of deluging federal courts with claims otherwise redressable in state courts or administrative proceedings looms far more ominously than in Bivens. 403 U.S. at 391 & n.4, 91 S.Ct. at 2002 & n.4, 29 L.Ed.2d at 623 & n.4. Not only does this case fail to present special remedial difficulties analogous to those faced by the Court in dealing with the fourth amendment, but also Congress avoided creating an action for money damages for Congressional aides in non-competitive positions. Moreover, implying this damage action necessarily would draw into the federal judicial system a wide range of cases whose resolution Congress has not committed to the federal judiciary and whose resolution is better suited to courts of general jurisdiction. These special considerations, not present in Bivens, eliminate any question of our creating a remedial right under our federal common law powers. This conclusion does not end our inquiry, however, for we still must determine whether the Constitution nevertheless compels an action for money damages implied from the fifth amendment Due Process Clause. Therefore, we next consider whether, in this case, a damage action is indispensible to the effectuation of the fifth amendment Due Process Clause and thus beyond the power of Congress to preclude. Cf. Kostka v. Hogg, 560 F.2d at 44. We conclude that the proposed damage remedy is not constitutionally compelled. Not every right that conceivably could be wedged within the literal breadth of due process demands federal protection through a cause of action for monetary damages. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Court considered the reach of federal remedies where Congress, in 42 U.S.C.A. § 1983, expressly provided that violation of constitutional rights by one acting under color of state law would give rise to a cause of action for monetary damages. Even with an express statutory mandate to provide a federal damage action, the Court noted that “ ‘the range of interests protected by procedural due process is not infinite.’ ” 424 U.S. at 709, 96 S.Ct. at 1164, 47 L.Ed.2d at 418 (1976), citing Board of Regents v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, 556 (1972). Here, we do not consider, as the Court did in Paul, what due process may encompass given an express statutory mandate to extend a cause of action for money damages to the full reach of the right. Rather, we consider the extent to which the Constitution requires that we countermand the clearly discernible will of Congress to create a cause of action where Congress declined to provide one. Paul thus teaches that we should restrain our reach far more than the Court did there. Denying an implied cause of action for money damages does not render meaningless any constitutional rights of congressional employees. A plaintiff might still seek equitable relief where the employer remained in office, although congressional employees in the non-competitive service whose allegedly discriminating employers are not in office may be left without a remedy for sex discrimination in employment unless Congress reverses its present statutory stand. Other due process wrongs would either continue to be remedied in traditional ways through tort actions in courts of appropriate general jurisdiction or through special statutory remedies provided by state legislatures or Congress. Admittedly, some not now covered would remain inactionable. Another provision of the Constitution must also be considered. Our rejection of the broad principle asserted by Davis is premised upon much more than just another “floodgates” argument. The prospect here is of so crushing an already precariously overloaded federal judicial system as to render meaningless the power the Constitution vests in Congress under Article III, Section 1, of the Constitution to establish the jurisdictional ambits of the inferior courts it has created. We decline to hold that by implication the fifth amendment requires such an anomalous result. . The opinion of the panel, 544 F.2d 865 (5th Cir. 1977), had, in turn, reversed the district court’s dismissal of a complaint filed by a discharged female congressional employee. . Apart from the Due Process Clauses, lower federal courts have looked favorably upon Bivens actions based upon the first, sixth, eighth, ninth, and thirteenth amendments. See, e. g., Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975) (thirteenth and fourteenth amendments); Paton v. La Prade, 524 F.2d 862, 870 (3d Cir. 1975) (first amendment); Jihaad v. Carlson, 410 F.Supp. 1132 (E.D.Mich.1976) (first and eighth amendments); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144, 160-62 (D.D.C.1976) (first and sixth amendments); Patmore v. Carlson, 392 F.Supp. 737 (E.D.M.1975) (fifth and eighth amendments). See also M. Lehmann, Bivens and Its Progeny, 4 Hastings Const. L.Q. 531, 566-72 (1977). . E. g., Saffron v. Wilson, 70 F.R.D. 51, 53 n.1 (D.D.C.1975) (“This holding [Bivens] has been interpreted almost unanimously as recognizing a cause of action for damages for violation of any constitutionally protected interest.”); Gardels v. Murphy, 377 F.Supp. 1389, 1398 (N.D.Ill.1974) (.“Bivens recognizes a cause of action for damages for violation of any constitutionally protected interest.”) . Several circuits have allowed plaintiffs to base Bivens implied actions solely upon the concept of due process: the Second Circuit, Gentile v. Wallen, 562 F.2d 193, 196 (2d Cir. 1977) (fourteenth amendment); the Third Circuit, United States ex rel. Moore v. Koelzer, 457 F.2d 892, 894 (3d Cir. 1972) (fifth amendment); but see Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977) (declining to allow cause of action on fourteenth amendment alone); the Fourth Circuit, States Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1156-57 (4th Cir. 1974) (fifth amendment); the Seventh Circuit, Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 718-19 & n.7 (7th Cir. 1975) (denying relief, but holding action could be brought solely under fourteenth amendment); the Eighth Circuit, Owen v. City of Independence, 560 F.2d 925, 932 (8th Cir. 1977) (fourteenth amendment in suit seeking back pay); the Ninth Circuit, Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928, 936-37, 941-43 (9th Cir. 1977) (one cause of action available on fifth amendment just compensation clause and another on fifth amendment due process clause). Other circuits have commented favorably upon extension of Bivens to actions implied from the concept of due process: the Tenth Circuit, e. g., Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 932 & n.5 (10th Cir. 1975) (apparently referring to the fifth amendment); the D.C. Circuit, e. g., Lewis v. D.C. Dep't of Corrections, 174 U.S.App.D.C. 483, 484, 533 F.2d 710, 711 (1976). The First Circuit has declined to imply a cause of action against municipalities from the fourteenth amendment Due Process Clause to grant damages for wrongful death. Kostka v. Hogg, 560 F.2d 37, 44 (1st Cir. 1977). . In several cases since Bivens, the Supreme Court has expressly left open the question whether an action for damages might be implied from the Due Process Clauses. Mt. Healthy School Dist. v. Doyle, 429 U.S. 274, 277, 97 S.Ct. 568. 571, 50 L.Ed.2d 471, 477 (1977); Aldinger v. Howard, 427 U.S. 1, 3 n.3, 96 S.Ct. 2413, 2415-16 n.3, 49 L.Ed.2d 276, 280 n.3 (1976); City of Charlotte v. Local 660, Int’l Ass’n of Firefighters, 426 U.S. 283, 284 n.1, 96 S.Ct. 2036, 2038 n.1, 48 L.Ed.2d 636, 639 n.1 (1976); District of Columbia v. Carter, 409 U.S. 418, 432-33, 93 S.Ct. 602, 610, 34 L.Ed.2d 613, 624 (1973). See also City of Kenosha v. Bruno, 412 U.S. 507, 514, 93 S.Ct. 2222, 2227, 37 L.Ed.2d 109, 116 (1973). . See 403 U.S. at 396-97, 91 S.Ct. at 2005, 29 L.Ed.2d at 626-27, citing J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423, 428 (1964) (federal securities laws); Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (action for abuse of process through misuse of statute governing Congress’ subpoena power); United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898 (1954) (indemnity action by government under Federal Tort Claims Act); United States v. Standard Oil Co., 332 U.S. 301, 311, 67 S.Ct. 1604, 1609-10, 91 L.Ed. 2067, 2073 (1947) (government sought implied remedy, based upon established common law action). . Bivens is cited in Cort to support the proposition that causes of action for damages should not be implied to govern matters “traditionally relegated to state law, in an area basically the concern of the States,” 422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36, and the proposition that where such actions have been implied, “there has generally been a clearly articulated federal right in the plaintiff,” id. at 82, 95 S.Ct. at 2090, 45 L.Ed.2d at 39. . See Kostka v. Hogg, 560 F.2d 37, 44 & n.7 (1st Cir. 1977). See also Rodriguez v. Ritchey, 556 F.2d 1185, 1193-94 (5th Cir. 1977) (en banc). See generally Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928, 937 & n.14 (9th Cir. 1977); C. Wright, Federal Courts § 60 (3d ed. 1976), citing D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 465-75, 62 S.Ct. 676, 683-88, 86 L.Ed. 956, 966, 971 (1942) (Jackson, J., concurring): Federal common law implements the federal Constitution and statutes, and is conditioned by them. Within these limits, federal courts are free to apply the traditional common-law technique of decision and to draw upon all the sources of the common law 315 U.S. at 472, 62 S.Ct. at 686, 86 L.Ed. at 969; Monaghan, Foreword: Constitutional Common Law, 89 Harv.L.Rev. 1, 10-13, 22-26 (1975). Where a remedy is of constitutional dimensions and particular elements are not subject to revisions by Congressional legislation, the Court has clearly so indicated. See, e. g., Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933); Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664 (1923). . 425 U.S. at 828, 96 S.Ct. at 1966, 48 L.Ed.2d at 408. . Section 717, 42 U.S.C.A. § 2000e-16(c) (1974), allows an employee or applicant aggrieved by final action or a failure to take final action on his administrative complaint to file a civil action under Section 706, 42 U.S.C.A. § 2000e-5 (1974), in which “the head of the department, agency, or unit . . shall be the defendant.” However, under this section, federal defendants may be sued only in their official capacities, and not as individuals. See Keeler v. Hills, 408 F.Supp. 386, 387 (N.D.Ga.1975); see also Jones v. Brennan, 401 F.Supp. 622, 627 (N.D.Ga.1975). . Davis has not challenged the distinction in Title VII between federal employees in competitive positions and those in non-competitive positions for the purposes of Title VII remedies.
JONES, Circuit Judge, specially concurring: Given these consequences and our inability to construct a plausible measure for acceptable limits on the right of action Davis would have us imply to remedy the wrong alleged, we refuse to take even a first step down the slippery slope until the Supreme Court answers the open question of whether any such right should exist. Because no right of action may be implied from the Due Process Clause of the fifth amendment, the district court correctly ruled that no civil action for damages may be maintained here. Absent such a right of civil action, the district court cannot exercise jurisdiction under 28 U.S.C.A. § 1331(a), which confers jurisdiction only for “civil actions wherein the matter in controversy . . arises under the Constitution ... of the United States.” To the extent that Weir is inconsistent with this position, it is overruled. Our affirmance on the jurisdictional ground means we do not reach Davis’ second contention. Therefore, we vacate the district court’s decision on the ground that Pass-man’s conduct in firing her did not violate the Constitution. The judgment of the district court is AFFIRMED IN PART, AND IN PART VACATED. If there is a constitutional barrier against the exercise of the judicial power to decide the controversy between Mrs. Davis and Mr. Passman then, so I believe, that bar should be raised rather than denying relief because the Congress has failed to enact legislation providing a remedy. I do not believe that the constitutional provisions here pertinent are to be confined to the Speech and Debate clause. The broader provision by which all legislative powers are vested in the Congress is relevant to this cause. It might be said that •the doctrine of inclusio unius est exclusio alterious permits or requires a construction that a Congressman may be judicially questioned for any and all else that a Congressman might do in the exercise of the legislative power except in speech or debate. Obviously the Constitution has no such meaning. We may remind ourselves of Chief Justice Marshall’s reminder as to constitutional construction. In no small measure the genius of the Founding Fathers in framing that most wonderful work ever struck off by man is the separation of powers among the three branches of government. Although the' need for checks and balances requires that no one of the departments shall be wholly unrelated to each of the others the essential functions of each are, by the terms of the instrument, separate from those of the others. Notwithstanding the Gravel and Brewster cases and Senator Ervin’s critical comments upon them the doctrine of separation of powers survives. It is not necessary to say that all of the activities of the members of a Congressman’s staff are legislative. It will not be said that they are not so in large measure. Their activities are as many and as varied as those of the members served by them. It has been well stated that “the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos . . . ” Gravel v. United States, supra, 408 U.S. at 616-17, 92 S.Ct. at 2623. It seems to me the court held that judicial relief is denied because the Congress has failed to provide a judicial remedy. Rather I think the court should say that the hiring and firing of his “alter ego” is a legislative activity and a part of the exercise of the legislative power. The question is not one of whether there is a judicial remedy. The question, as I see it, is whether or not the controversy is one involving the exercise of the legislative power and within the jurisdiction of the Congress. Let it decide whether there should be absolute immunity. Let it determine whether there is a right and if so to fashion a remedy and designate a tribunal to declare and enforce it. I think it should have been held that the complaint does not state a claim upon which relief can be granted. . The Senators and Representatives . . . for any speech or debate in either House . . shall not be questioned in any other place. U.S.Const. Art. I, § 6(1). . U.S.Const. Art. I, § 1. . “We must never forget that it is a constitution we are expounding.” McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 4 L.Ed. 579 (1819) . William E. Gladstone, 127 North American Review 179 (Sept. — Cot. 1878). . J. Madison, The Federalist, No. XLV11I (1852 ed.). . It may be appropriate to take note of a recent comment of the Attorney General that although the Constitution and statutes provide that the President shall nominate and by and with the advice and consent of the Senate shall appoint federal judges and U.S. attorneys the reality is that "the Senate nominates and the President confirms persons to fill those offices.” Griffin B. Bell, Washington Post, February 27, 1978. . United States v. Gravel, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). . United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). . Sam J. Ervin, Jr., The Gravel and Brewster cases: An Assault on Congressional Independence, 59 Va.L.Rev. 175 (1973).
RONEY, Circuit Judge, concurring: I concur in the result reached by the majority opinion, but I am constrained to articulate the difference I see between this case, in which I agree that plaintiff has no constitutional damage remedy based on an alleged fifth amendment violation, and the case of Rodriguez v. Ritchey, 556 F.2d 1185 (5th Cir. 1977) (en banc), in which I joined a dissent on the ground that plaintiff there could claim damages against federal officers for an alleged due process violation. In his concurring opinion in Bivens, Justice Harlan intimated that “the appropriateness of money damages may well vary with the nature of the personal interest asserted.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 408 n.9, 91 S.Ct. 1999, 2011, 29 L.Ed.2d 619, 634 (1971) (Harlan, J., concurring). The distinction I find between Rodriguez and the instant case lies in the nature of the personal interest asserted in the “due process” violations alleged. In Rodriguez the plaintiff was indicted, arrested, and held in bail for many months for a crime she knew nothing about and of which she was altogether innocent, because of the allegedly unconstitutional acts and conduct of a federal agent. In dissent, both Judges Coleman and Goldberg, with whom I concurred, held that plaintiff had a Bivens -type damage claim if the agent’s acts were so reckless as to constitute a willful violation of the plaintiff’s “right to remain free of unconstitutional intrusions by governmental agents.” 556 F.2d at 1195. To me, there is little distinction between the personal liberty invasion by arrest and indictment in Rodriguez and the personal liberty invasion by the private apartment search, seizure, and arrest in Bivens. Both cases involved the citizen’s right to be let alone by Government agents, unless the agents act within the governmental powers ordained by the Constitution. The Constitution gave limited power to the Government it created. Without a constitutional base, no individual has the legal authority to act against another individual in- the name of Government. Some governmental powers are specifically given, but to make absolutely sure that certain powers not given would not be read into the Constitution by overzealous Government officers, either executive, congressional, or judicial, there is a list of “shall nots” in the Bill of Rights. Many of the individual rights enumerated there were neither “created” nor “given” by the Constitution, but rather were recognized as being inherent rights of individuals long before the summer of 1787. The framers’ approach to those rights in the written Constitution was to try to assure they would remain forever free of governmental intrusion. Such were the fundamental rights at stake in Bivens and Rodriguez. Even before the drafting of our Bill of Rights, plaintiffs Bivens and Rodriguez had an inherent right to be free from the type of intrusions they suffered. The constitutional amendments — in Bivens, the fourth, and in Rodriguez, the fifth — merely protected those rights by specific prohibition against encroachment. I saw Rodriguez as being controlled by Bivens and would have there held that the case law provided plaintiff Rodriguez with a damage remedy, a damage remedy rooted in preconstitutional notions of tort law. In this case, however, no similar right is at stake. The defendant has not intruded upon a liberty interest with preconstitutional origins. Historically, employers had an inherent right to hire and fire whom they pleased, for whatever reason, arbitrarily, with no need to account to anyone for their actions, except perhaps to their conscience and their God, and for governmental employers, to their voters. This understanding of the employer-employee relationship prevailed when the Constitution was drafted and, indeed, formed the basis for decisions of the United States Supreme Court in this century. See Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436 (1908); Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915). Under this early theory, Ms. Davis had no right to be hired in the first place, and if hired, held her job subject to the whim of the individual who had the power to hire and fire. But the Constitution has allegedly given her a right not to be fired on the basis of her sex. This right is not, however, a protected inherent right, but a right “created” by the Constitution, a right which in fact encroaches upon what was historically viewed as an inherent right of her employer. Now the question is, Where does one find the roots for a damage remedy for a violation of this right so recently discovered in the recesses of the fifth amendment? The dissenting opinion of Judge Goldberg repeatedly invokes the oft-quoted dictum that “where legal rights have been invaded, and a federal statute provides for a general right to sue for any such invasion, federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939, 944 (1946), quoted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). It is interesting to note, however, that the author of that statement, Justice Black, dissented in Bivens on the ground that “neither Congress nor the State of New York [had] enacted legislation creating . a right of action [for damages].” 403 U.S. at 428, 91 S.Ct. at 2020. (Black, J., dissenting). The people, by both Constitution and statute, can and often do create rights for which they provide either no remedy or a restricted remedy for the violation thereof. In analyzing such rights, the courts are not entirely free to afford remedies which have not been provided by the creator of the rights. Thus, to me, Judge Clark makes a necessary analysis to determine whether a damage remedy is rooted in the document which created the violated right. Here we find the relevance of the analysis provided in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). To me also, this is where I part from Judge Goldberg, with whom I joined in Rodriguez. The majority opinion does not “cut back” on Bivens. The underlying facts and concept of Bivens, by themselves, simply do not cover the rights asserted in this case. The question, then, is not whether Bivens applies, but whether the courts will infer from the Constitution itself a damage remedy for the violation of the kind of due process right here claimed. For here, a damage remedy must be rooted in the document— the Constitution — which created the violated right, or a subsequent statute, since there is no preconstitutional source for it. This gets down to the real difference between the majority and the dissent, in my view. Bivens can easily be grounded on the premise that courts may remedy the unlawful violation of constitutionally “protected” individual rights. But it will better satisfy the revered concept of Government “by the people” if the rights “created” by Constitution or statute are remedied in only those ways that can safely be inferred from the creating documents. Bivens, which produced five separate opinions, was not an easy decision. Lower courts probably disserve the law by carrying obviously difficult, narrow, limited decisions of the Supreme Court far beyond their intended reach. Such judicial activity subverts a major objective of law in an organized society: to provide certainty for human action. The majority of this Court has shown precisely the restraint required. If the people, through their elected officials, choose to provide the remedy sought here, so be it; but until then the courts, through their appointed judges, should not require it. It is impossible to completely align the cases in such a way as to support the distinction made here between Bivens and Rodriguez, and this case. But so is it impossible to line up the cases to support any other logical Bivens premise. There is a bit of symmetry, however, if we look only at the facts of the cases, and the results, and disregard the verbalization of principles in the written opinions. In the purest sense, the facts and the result are the precedent from which stare decisis should flow anyway. As the Supreme Court held in Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 90 L.Ed. 939 (1946) federal question jurisdiction, as opposed to a federally recognized right of relief, is created by the mere allegation of matters in controversy arising under the Constitution or laws of the United States. Most of the circuit court cases dealing with Bivens-type claims in constitutional areas other than the fourth amendment have decided only the federal jurisdiction question. Dicta aside, these cases have merely found allegations of constitutional violations to be sufficiently substantial to ground federal jurisdiction under 28 U.S.C.A § 1331. This is altogether different from inferring a Bivens -type damage remedy from the constitutional provisions asserted. See, e. g., Weir v. Muller, 527 F.2d 872 (5th Cir. 1976); Lewis v. District of Columbia Dept. of Corrections, 174 U.S.App.D.C. 483, 533 F.2d 710 (1976). Indeed, the only cases cited by the dissent as extending Bivens beyond the fourth amendment to the due process rights of discharged employees were not Bivens remedy cases. In Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977) the Second Circuit held that a claimed denial of due process by a discharged elementary school teacher stated a cause of action arising directly under the fourteenth amendment. On the question of remedies, however, the court stated: “Whether money damages are available under this cause of action or only equitable relief . . . is a question of remedies that we need not reach . . . .” Id. at 197 n.4 (citation omitted). Since the power of federal courts to grant equitable relief for violations of constitutional rights was recognized prior to Bivens, the Gentile court did not really advance the march of Bivens into the area of fifth amendment rights. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 400, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Harlan, J., concurring); Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Likewise, in Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), the Eighth Circuit held that a discharged city employee was entitled to monetary relief in the nature of backpay for violation of fourteenth amendment due process, but was careful to emphasize that it was discussing “only an equitable remedy . . . Id. at 933 n.9 and 940. Cases in which circuit courts have inferred a Bivens -type damage remedy from constitutional amendments other than the fourth have varied widely in their facts, but have generally involved an intrusion into a liberty interest having preconstitutional origins. For example, the first amendment did not “create” the right to express one’s views free from unlawful governmental intrusion; it merely protected an already present right from governmental interference. Dellums v. Powell, 566 F.2d 167 (D.C.Cir. 1977) (speakers and demonstrators unlawfully arrested by District of Columbia police during 1971 “May Day” demonstration have cause of action for damages arising directly under first amendment); Paton v. LaPrade, 524 F.2d 862 (3rd Cir. 1975) (Bivens-type damage remedy for violation of first amendment rights available to 16-year-old school student who was investigated by FBI after sending off for literature from Socialist Workers Party in connection with her social studies class); Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392 (6th Cir. 1975) (complaint alleging that because of anti-fluoridation speeches made by plaintiff, Department of Health, Education and Welfare coerced plaintiff’s employer to fire him stated a Bivens-type damages action for violation of first amendment rights). Nor did the due process clause of the fifth amendment “create” a right in the individual to be free from deprivation of liberty and property interests; it merely provided that government encroachment would be constitutional only if it followed the criteria therein provided. Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928 (9th Cir. 1977) (allegation that certain zoning ordinances enacted by agency operating under federal law effectuated a “taking” of plaintiff’s land states a Bivens -type damage claim arising directly under the fifth amendment); States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974) (unlawful seizure of plaintiff’s property by Customs agents gives rise to a Bivens-type damage action arising directly under fifth amendment); United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir. 1972) (allegations that FBI agents falsified documents and testified falsely in order to convict plaintiff state cause of action for damages arising directly under fifth amendment). These fundamental rights, unlike the liberty interest asserted by Ms. Davis, are not “created” by the Constitution but are inherent in the individual, either absolutely “protected” by the framers from encroachment by the Government, or “protected” to the extent provided in the Constitution. In sum, a claim for damages should not be foreclosed merely because it arises out of a fifth amendment violation, rather than a fourth, but should be considered on the basis of the personal interest asserted. The remedy sought for the personal interest asserted by Ms. Davis cannot be infused into the Constitution without unduly burdening the reasoning with the hope, faith, and personal preference of the reasoner. Therefore, I would affirm the district court.
GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, joins, dissenting: A majority of the en banc court today holds that no private cause of action for damages may be implied from the due process clause of the fifth amendment to the United States Constitution. I believe that this conclusion, certainly as it applies to the facts of this case, is untenable so long as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), is good law. Finding nothing in subsequent opinions of the Supreme Court which undercuts the vitality of the reasoning in Bivens, I would hold that Shirley Davis has a private right of action for damages to vindicate her constitutional rights. While recognizing that constitutional attrition may be the benchmark of the 1970’s, I would leave it for the Supreme Court to place the mark of Cain on Bivens’ heretofore unblemished brow. It is a source of deep regret that it is the Fifth Circuit, a court so often exemplary in its affirmation of constitutional rights, which has chosen to start Bivens down the slippery slope into desuetude and demise. I respectfully dissent. I. In the early part of 1974 Shirley Davis was Deputy Administrative Assistant to Congressman Otto E. Passman of Louisiana’s Fifth Congressional District. The Representative terminated Ms. Davis’s employment, effective July 31, 1974. In his letter to her explaining the termination decision the Representative wrote, “You are able, energetic and a very hard worker. . [Hjowever, on account of the unusually heavy workload in my Washington Office, and the diversity of the job, I concluded that it was essential that the understudy to my administrative assistant be a man.” The full text of this rather remarkable letter is set out below. Davis then filed this action against the Representative, claiming he had violated the equal protection component of the fifth amendment’s due process clause. She invoked the court’s “arising under” jurisdiction pursuant to 28 U.S.C. § 1331(a) and sought relief including, inter alia, damages from Passman in his individual capacity. The district court assumed jurisdiction of the case and proceeded to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), holding that “the discharge of plaintiff on alleged grounds of sex discrimination by defendant is not violative of the Fifth Amendment to the Constitution” and that “the law affords no private right of action to plaintiff therefor.” A panel of this court reversed the decision of the district court and remanded the case for trial. 544 F.2d 865 (5th Cir. 1977). The panel concluded that taking the complaint’s allegations as true, Representative Passman’s dismissal of a staff member on the basis of gender violated the equal protection component of the fifth amendment due process clause; that under Bivens the Constitution itself affords the dismissed staff member a damages remedy; that sovereign immunity does not bar a damages award against the Representative individually; that the speech or debate clause does not extend to staff dismissals because they are not “legislative tasks” within the Supreme Court’s holdings; and that the existence of qualified immunity cannot support the district court’s dismissal of the complaint. See id. at 882. Circuit Judge Jones dissented from the judgment of the panel on the basis of the doctrine of separation of powers. Id. Representative Passman, by then defeated in his bid for reelection and retired from the Congress, filed a petition for rehearing en banc, alleging that congressional hiring and firing were insulated from judicial review under the political question doctrine and the speech or debate clause. The court granted rehearing en banc. Today, not reaching the thorny constitutional issues posed by the scope of congressional immunity under the speech or debate clause, the en banc majority determines that no right of action for damages may be implied from the fifth amendment due process clause. As I dissent from this holding, I necessarily must reach the other issues, including the applicability of the speech or debate clause, considered in the panel opinion. On those issues, I would adhere to the analysis explicated in the panel opinion; I confine my remarks here to the Bivens question. On Bivens, the thrusts of Judge Clark’s opinion for the en banc majority merit defensive parries in response. II. Only in one case has the Supreme Court directly confronted and decided the question whether a federal cause of action for damages may be implied directly from the United States Constitution: Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Having created in that case “a policy of access,” the Court has since chosen to refrain from possibly premature rigidification of the contours of the Bivens action, in effect licensing the lower federal courts to develop their own rules setting the parameters, consistent with the mandate of Bivens itself, within which constitutional rights may be vindicated by private damage actions. As noted by the en banc majority, few courts have held that Bivens actions are limited to fourth amendment claims. With respect to the due process clauses of the fifth and fourteenth amendments, the overwhelming weight of authority, particularly at the Court of Appeals level, holds that constitutional rights may be vindicated through implied causes of action for money damages. And as the en banc majority is also aware, numerous panels of this circuit have adhered to Bivens’ policy of access, finding jurisdiction under 28 U.S.C. § 1331 for district courts to entertain implied causes of action for damages under the due process clauses of the fifth and fourteenth amendments. Nevertheless, taking Ms. Davis’ allegations as true, the en banc court today chooses to deny a right of action to the victim of as blatant a case of gender-based discrimination as is within my experience on this court. Would that the Fifth Circuit had instead chosen to add one more jewel to its liberating diadem of pioneering jurisprudence. Still, the en banc court is correct in noting that despite the overwhelming weight of authority, choice is not foreclosed. The Supreme Court has invited judicial creativity, and Judge Clark, with his customary care and acuity, has authored - as persuasive a rebuttal of this authority as might be imagined. Yet I remain unpersuaded. The test is Bivens. I offer here a reading of that case which I believe to be more consistent with its holding and more harmonious with its spirit than the reading offered by the majority. III. If I understand the majority’s treatment of Bivens, the crux of its reasoning is that the Supreme Court was able to imply a damages remedy for violation of the fourth amendment by federal officers only because Congress had not spoken. The Supreme Court’s indication of a possible willingness to accord some deference to an “explicit congressional declaration” of preference for an alternative remedy “equally effective in the view of Congress,” Bivens, 403 U.S. at 397, 91 S.Ct. at 2005, is apparently taken to mean that a cause of action for damages is not “part and parcel of the underlying constitutional right,” therefore “is not wholly of constitutional dimensions,” and thus is “subject to the will of the Congress for the substitution of other remedies, so long as the minimum demands of the Constitution are met.” (Emphasis added). Majority opinion, supra, at 796-798. What follows from this perspective is that the implication of a cause of action from the Constitution is initially to be governed, or at least guided, by the standards applicable to implication of remedies from statutory enactments, as elucidated by the Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Only if a cause of action for damages satisfies these statutory standards, or if “a damage action is indispensibie to the effectuation of the fifth amendment,” (emphasis added), majority opinion, supra at 800, may a damage remedy be implied. I believe that proper application of the Cort analysis to a constitutional claim would justify implication of a damages remedy directly from the fifth amendment on the facts of this case. But my disagreement with the majority is a more fundamental one: I believe the premises underlying the analytic structure proposed by the majority are irreconcilable with the Supreme Court’s opinion in Bivens. In my view Bivens is a decision of constitutional magnitude. The fundamental inquiry in Bivens was whether the Constitution mandates some remedy for a petitioner whose constitutional rights have been violated. Only after finding that some remedy is constitutionally compelled did the Supreme Court go on to consider which remedy is appropriate —not necessary in itself— in the circumstances of a given case to redress the constitutional violation: [T]he Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” 403 U.S. at 392, 91 S.Ct. at 2002, citing, inter alia, Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946). The Constitution creates a right in the plaintiff; the courts are to adjust their remedies to accord relief. That the fourth amendment might be enforced by other plaintiffs, in other contexts, through mechanisms other than a damage action, was passed over by the Bivens majority as of little moment. What was significant to the Court was the remedial plight of the petitioner in the case before it. As stated by Justice Harlan, concurring: [I]t is apparent that some form of damages is the only possible remedy for someone in Bivens’ alleged position. . [Assuming Bivens’ innocence of the crime charged, the “exclusionary rule” is simply irrelevant. For people in Bivens’ shoes, it is damages or nothing. Id. at 409-10, 91 S.Ct. at 2011-12. On the need to provide an effective remedy, the Court was unequivocal: [I]t is . well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for any such invasion, federal courts may use any available remedy to make good the wrong done. let at 396, 91 S.Ct. at 2004, citing Bell v. Hood, 327 U.S. at 684, 66 S.Ct. at 777. In this respect, provision of a damage remedy “should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Id. at 395, 91 S.Ct. at 2004 (citations omitted). The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his [constitutional] rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Id. at 397, 91 S.Ct. at 2005 (citations omitted). Responding to the suggestion that a more stringent test should govern the grant of damages in constitutional cases, Justice Harlan stated: These arguments . . . seem to be adequately answered by the point that the judiciary has a particular responsibility to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment. Id. at 407, 91 S.Ct. at 2010 (concurring opinion) (footnote omitted). The en banc majority’s apparent conclusion that the Bivens damage action is of non-constitutional dimensions seems to be tied to its assumption that a cause of action not “part and parcel of the underlying constitutional right” is merely federal common law of less than constitutional dimensions. But to state that the Court may accord some deference to a congressional choice of remedy “equally effective in the view of Congress” is only to admit the possibility of substitutes for the damage remedy, not to say that Congress may eliminate all means of vindication of a federal constitutional right. Had Congress chosen to provide a remedy alternative to money damages to those “in Davis’ shoes,” this court would be correct in according that choice deference, though even in those circumstances, [t]he ultimate determination of whether a remedial scheme appropriately effectuates the mandate of the Constitution is, of course, to be made by the Court as an exercise of constitutional judicial review. Perhaps the clearest statement by the Supreme Court itself on this subject is found in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966): Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it. In any event, however, the issues presented are of constitutional dimensions and must be determined by the courts. . . . Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. Id. at 490-91, 86 S.Ct. at 1636. The opinion of the en banc majority totally fails to address the core inquiry commanded by Bivens. Apart from a passing reference not applicable to the plight of Ms. Davis that “[a] plaintiff might still seek equitable relief where the employer remained in office,” majority opinion, supra, at 800, the en banc court nowhere considers whether some remedy must be available to vindicate fifth amendment rights. Where is the sensitivity that moved Justice Harlan to observe “For people in Bivens’ shoes, it is damages or nothing”? 403 U.S. at 410, 91 S.Ct. at 2012. The majority essentially ignores the constitutional predicate for the Bivens decision, i. e., that there be a remedy, and reformulates the inquiry in a far more stringent fashion: a cause of action for damages will be implied only if damages, specifically, are in some absolute sense necessary to effectuate the constitutional mandate. The court then proceeds to find a damage remedy unnecessary while simultaneously acknowledging that constitutional deprivations of the sort suffered